Canadian HR Reporter

July 2021 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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2 www.hrreporter.com N E W S be used by the joint health and safety committee for equipment upgrades. The company did have an outbreak at one location, but overall it's been fortunate, says Larouche, citing ongoing safety measures such as thermal scan- ning, face masks and visors, along with social distancing, disinfecting and some rapid testing. "We have many, many things to protect people. But we're not immune." There's no doubt that vaccination is going to be a key factor in the workplace going forward, says Kate McNeill-Keller, partner at McCarthy Tétrault in Toronto. "What that looks like will vary from business to business and workplace to workplace, and potentially province to province," she says. "Employers are going to continue to need to evaluate all of the various health- and safety- related options that present themselves, and vaccines are going to be a significant part of that." To that end, employers in an unpreced- ented situation face many questions about vaccines, from requirements and accom- modation to efficacy, incentives, employee privacy and passports. Should vaccines be mandated? Of course, one of the biggest questions confronting employers is whether vaccines should be mandated for their workplace once they are widely available among the population. "[Employers] have the difficult and unenviable task of balancing the health and safety concerns of their employees or visitors or customers with the human rights concerns of their employees and workers," says Puneet Tiwari, legal counsel and legal claims manager at Peninsula Canada in Toronto. It's definitely workplace- or sector- specific, he says. But mandating vaccines depends on a lot of factors. "The consensus generally is that forcing someone to put the needle in their arm is not something an employer can do," she says. "But whether there is organizational redesign, whether there are changes in terms and conditions of employment, whether there are accom- modation or other issues that come out of vaccination is very much a live issue and will depend on a host of factors, including the nature of the workplace… occupational health and safety and public health guidelines, and the circumstances of individual employees." As part of that, employers "will look to whether identifying certain individual employees as vaccinated versus non- vaccinated, and altering terms and condi- tions of employment associated with that, will be a reality," says McNeill-Keller. As an occupational health and safety obligation, employers should have vaccine policies, and they should be mandating that all employees be vaccinated, says Ian Pickard, partner at McInnes Cooper in Halifax. "That's the easy part, and I think that would be fairly unanimous. But the harder part is: What's the repercussion to the employee who chooses not to have the vaccine? And our position is… that employee shouldn't be terminated in that situation. You need to find… an 'off ramp' for the employees." That could mean a leave of absence without pay until herd immunity is achieved, working from home, agreeing to be tested before work or demon- strating that they've had COVID — although the latter could be problematic unless the science is clear that someone with the antibodies is not going to be able to spread it, says Pickard. "As long as there's an option for the "If you're in a long-term care home or in any kind of health setting where there's vulnerable individuals, or in a sector that is really an essential service or where social distancing or other protective measures can't be maintained, I think it's very important that those employers mandate something." But that doesn't mean people either have to be vaccinated or they'll be fired, says Tiwari; it means the employer should try to find an alternative. "For example… your employer could ask you to stay home until the pandemic is over because you refuse to get a vaccine. That would be reasonable." Employers will look to be a driving force towards "getting us as a society to herd immunity by incentivizing vaccin- ation, by encouraging and educating their workforces to become vaccinated, and potentially mandating vaccina- tions in particular environments," says McNeill-Keller. person who doesn't want to be vaccin- ated, other than staying home… that's satisfactory, then I'm good with it. That delegitimizes any argument about 'My body, my right,'" he says. "I do think in order to be enforceable, there needs to be a second option." Accommodation considerations When it comes to human rights objec- tions to having the vaccine, the two that need to be accommodated are religious and disability objections. But for those people who don't want to be vaccinated or are scared of the shot or think "the government is going to put a tracking device in them," says Pickard, that's not a human rights issue, so they're not entitled to accommodation. Even with valid human rights objec- tions, the employer's only obligation is to accommodate to the point of undue hard- ship. If allowing that person to come to work without being vaccinated is creating a risk for everybody else and there is no way to accommodate them, "it might be an undue hardship," he says. In health care or long-term care, for example, where large groups of people are being serviced by the employees, "I would argue it would be undue hardship to allow one or two unvaccinated people or untested people to be in that space," says Pickard. But if workers are working from home, the employer may not be able to require those people to be vaccinated because the impact is little or none. "Your undue hardship argument becomes tough at that point," he says. "They' ll say, 'Well, I've been working from home totally fine for the last year and a half. Why can't I just keep doing this?'" WORKERS DIVIDED ON VACCINE REQUIREMENTS Source: Perceptyx, U.S. "I would argue it would be undue hardship to allow one or two unvaccinated people or untested people to be in [a health-care] space." Ian Pickard, McInnes Cooper 47% Percentage of workers who believe employers should require employees to get vaccinated against COVID-19 43% Percentage of workers who say they would consider leaving their organization if taking the vaccine was a requirement 64% Percentage of workers who believe there is no safe return to work until all employees are vaccinated 54% Percentage of workers who say they would feel safe returning to the office if they were vaccinated but others are not Vaccines> pg. 1

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